In an era characterized by rapid technological advancements and the constantly evolving forms of cyber threats such as denial of service attacks and phishing schemes, Zambia finds itself at a pivotal point in safeguarding its cyberspace to combat risks such as financial losses, data breaches and disruptions to essential services and to enhance the need to protect national security. These are major concerns in the digital era.
The year 2021 marked a watershed moment as Zambia, in a bold move, repealed and replaced the Electronic Communications and Transactions Act No. 21 of 2009 with three pieces of legislation to better address the current technological advancements and generally align with the evolving international standards and practices. These are, the Data Protection Act, the Electronic Communications and Transactions Act and the Cyber Security and Cyber Crimes Act all of 2021. However, it is the latter, the Cyber Security and Cyber Crimes Act, that has captured the spotlight owing to its cross-cutting nature. This article delves into an overview of the Cyber Security and Cyber Crimes Act review process and the development of the Amendment Bill that seeks to repeal and replace the Cyber Security and Cyber Crimes Act.
At its core, the Cyber Security and Cyber Crimes Act seeks to provide for cyber security in Zambia, to ensure the protection of persons against cybercrime including online child protection and the facilitation of the identification, declaration and protection of critical information infrastructure.
The enactment of the Cyber Security and Crimes Act was followed by calls for its review by various stakeholders who felt the process of its enactment was not consultative and violated some fundamental human rights such as Right to privacy, the Freedom of expression and the freedom of the press as guaranteed by Articles 17 and 20 (1) and (2) of the Constitution, Chapter 1 of the Laws of Zambia. The call for review was followed by a petition filed in the High Court by a consortium of civil society organisations who argued against the Act based on the matters identified above. This was in the case of Chapter One Foundation and Others v Attorney General and Another (2021/HP/0358).
Following a negotiated settlement between the petitioners and Government, Cabinet approved the process to amend the Cyber Security and Cyber Crimes Act No. 2 of 2021 to ensure that its provisions and enforcement mechanisms align with the Constitution and also to ensure the process of its review and subsequent amendment is consultative.
To ensure inclusivity, the Ministry of Technology and Science invited public comments and solicited feedback from key stakeholders on matters the Ministry felt should be addressed in the Bill intended to be developed. Thereafter, a Technical Committee was constituted to develop a draft bill.
In May 2023, the Ministry of Technology and Science engaged the Zambia Law Development Commission to conduct the final steps for the development of the draft Cyber Security and Cyber Crimes Bill. The final steps in the development of the Bill that were to be undertaken by ZLDC included undertaking provincial consultative meetings in all 10 provinces. This was followed by a desk review study to consider the issues arising from the stakeholder engagements and the amendment of the draft Bill accordingly.
Based on the research conducted, several key recommendations have been made, we shed light on some key recommendations. First is the definition of the word “child Pornography”. Stakeholders were of the view that the definition of the word in the Bill was not adequate. The Commission therefore recommended that audio and text should be included as forms of child pornography in line with the definition in the Optional Protocol to the Convention on the Rights of the Child. It was also recommended that the term “Harassment” should be harmonised with the definition contained in the Gender Equity and Equality Act No. 22 of 2015.
It was also recommended that the Bill should establish institutions to be called the Zambia National Cyber Security Agency and the Zambia Cyber Incident Response Team, which will be responsible for the implementation of the law and serve as the initial point of contact for handling cyber incidents.
It was further recommended that interception or attempted interception of any communication, as well as the procurement of another person to intercept or attempt to intercept any communication should be prohibited so as to address stakeholder submissions that the provision had potential to undermine the right to privacy.
What is next for the Amendment Bill? ZLDC successfully handed over the Report and the proposed Bill to the Ministry of Technology and Science on 30th April 2024 for onward submission to the Ministry of Justice and Parliament. The two bodies, as per their mandate, will carry out further scrutiny and stakeholder consultations that will inform the provisions of the subsequent piece of legislation to be enacted.
In conclusion, the journey towards enhancing cyber security and combating cybercrimes in Zambia through the review of the Cyber Security and Cyber Crimes Act No. 2 of 2021 has been marked by thorough stakeholder engagement, legal and policy scrutiny, and a commitment to upholding Constitutional rights and freedoms. As the Amendment Bill progresses through further scrutiny and consultations, it underscores the nation’s dedication to fostering a secure digital landscape while safeguarding fundamental Rights and Freedoms. This collaborative effort, supported by various stakeholders, reflects Zambia’s proactive stance in adapting to the challenges of the digital era and ensuring that its laws remain relevant and effective in combating cyber threats.
To read more on the findings and Recommendations of The Zambia Law Development Commission on the Review of the Cyber Security and Cyber Crimes (Amendment) Bill, visit the Commission website, www.zambialawdevelopment.org or Email; Zambialawdevelopmentcommission@gmail.com
The Author, Mr. Teddy Likando is an Assistant Research Officer at the Zambia Law Development Commission